2. Evidence of-Continued.

(a) Parol evidence-Continued.

to the fact of the service by either the principal or the substi tute during the entire period mentioned; but payment to the substitute is not necessarily conclusive evidence that the principal rendered no part of the service. The fact of no payment to principal is merely negative, and there having been filed in the case a contract as to service between the principal and substitute, the genuineness of which is not questioned, corroborated by parol testimony, executed October 12, 1812, the evidence is deemed sufficient to show service of the principal and to controvert the record which negatively indicates that the principal rendered no service, so far as to show that said principal did serve in the war of 1812 for a period of more than fourteen days, or from August 25, 1812, to date of con. tract. Nancy Riley (Sec. Schurz), 6 P. D. (o. s.), 344.

(b) Record evidence.

Sixty days' service in the war of 1812 may be shown by the records of the Third Auditor of the Treasury of payments made to the soldier. Zenas W. Barker (Actg. Sec. C. B. Smith), 1 P. D. (o. s.), 240.

State auditors' certificates should not be accepted as controverting the records of the Third Auditor's Office, as such certificates and original rolls in State offices are made up, in some instances, of affidavits of interested parties. John Hansford (Actg. Sec. Cowen), 2 P. D. (o. s.), 111.

Application for pension under act of March 9, 1878, was rejected upon the ground that there is no record evidence of the organization in which service is alleged. Action of office is reversed and claim ordered to be allowed upon the ground that the service alleged is an historical event. Edmund Dudley (Sec. Schurz), 5 P. D. (o. s.), 463.

The rejection of this claim for service pension under the act of March 9, 1878, is affirmed, there being no record or other sufficient evidence that claimant rendered the required service of "fourteen days in the war with Great Britain in 1812" as a substitute. William Young (Asst. Sec. Reynolds), 8 P. D., 35.

The report of the War Department showing that the Hawkins-Taylor commission credited claimant with but two months' (sixty-one days) service during the war of the rebellion is con clusive of the question of service in this case. Such service having been less than ninety days, his claim under the second section of the act of June 27, 1890, was properly rejected on that ground. Phillip John (Asst. Sec. Reynolds), 8 P. D., 64

2. Evidence of-Continued.

(b) Record evidence-Continued.

The report of the Hawkins Taylor Commission is final as to length of a soldier's service in cases arising under the act of March 25, 1862. James L. Hicks (Asst. Sec. Reynolds), 8 P. D.,

(1) War Department's jurisdiction as to its records.

The enlistment and discharge of soldiers, whether regulars, volunteers, or militia, pertains exclusively to the business of the War Department, and no evidence should be accepted by the Pension Office to controvert the rolls and records of that Department or to supply defects in such records. When a claimant alleges enlistment in a regiment which was accepted into the United States service during the late war and it appears from the report of the proper officer of the War Department that there is no evidence on file of his enlistment, he or his attorney should be advised of such report, and informed that correspondence concerning the alleged defect should be directed to that Department; and if evidence should come into the possession of the Pension Office showing, or tending to show, that a defect or error exists in any roll or record in the War Department, such evidence should be referred to that Department for such action as may be deemed proper; or, where a claimant has not been discharged from the service of the United States, he should be referred to the War Department and action upon his claim be suspended until he has obtained a discharge. James H. Carpenter (Sec. Kirkwood), 8 P. D., (0. s.), 452.

The determination of the question whether the husband of the claimant was a soldier in the organization referred to (Captain Moffatt's company of South Carolina Volunteers, war with Mexico) pertains to the business of the War Department, and no evidence other than the report of the proper officer of that Department should be received by the Pension Office as proof of his service. Ellen Moore (Sec. Kirkwood), 8 P. D. (o. s.), 475.

It is the province of the War Department to determine whether the person on whose account this claim is made was in the military service of the United States, and no action looking to the adjudication of the claim can be taken until proof shall have been furnished to the War Department that Le Fevre was in the military service of the United States and a report to that effect shall have been received from that office. Ann Parker, widow of George Le Fevre (Sec. Kirkwood), 9 P. D. (o. s.), 81.

13201-- -30

2. Evidence of-Continued.

(b) Record evidence-Continued.

The records of the War Department, as far as they go, must be taken as furnishing the correct history of the military serv ice of a claimant for pension, and it is in the power of neither the Commissioner of Pensions nor the Secretary of the Interior to alter such records. If error exists in said records it must be corrected, if at all, by the proper officer of the War Department. Samuel Everman (Asst. Sec. Hawkins), 1 P. D., 418.

Claimant entered the service in the place of his brother and assumed his brother's name, serving more than thirty days. The record of the War Department shows that he was accepted into the service in the manner specified, and that his service is regarded by that Department as separate and distinct from that of the principal (his brother), and as having been entered upon under an implied contract equivalent to an enlistment and muster into the service of the United States: Held, That his service meets the requirements of the statute, and he is entitled to pension thereunder. James M. Griffin (Asst. Sec. Reynolds), 8 P. D., 57.

3. Length of service.

(a) Issue of bounty-land warrant not conclusive of.

When it is shown that a soldier, on account of whose service pension under the act of January 29, 1887, is claimed, did not serve for a period of sixty days in Mexico, en route thereto, nor on the coast or frontier thereof, the fact that a bounty-land warrant had been issued to him for such service does not establish a pensionable service under said act. Julia B. Hollywood (Asst. Sec. Reynolds), 8 P. D., 106.

See also EVIDENCE.

(b) Period for which paid governs generally.

The period for which the soldier was paid determines the length of service. Winnie Hundley (Actg. Sec. Joslyn),

13 P. D. (0. s.), 541.

Where, allowing one day for each 20 miles traveled going to and returning from the rendezvous, and including the time spent at the rendezvous, a claimant's service was less than sixty days, he is not pensionable under the act of January 29, 1887. Robert W. P. Muse (Asst. Sec. Hawkins), 2 P. D., 180. The rule that the period of pay determines the period of serv ice is unalterable, having governed the War Department from the date of the Government's foundation; and this Department is governed by the rule, as it can not go beyond the records of that Department. Citing Albert K. Ransom, 5 P. D., 183; Randolph M. Manley, ibid., 295. Sarah A. Kersey (Asst. Sec. Bussey), 6 P. D., 1.

3. Length of service-Continued.

(b) Period for which paid governs generally—Continued.

Period of pay determines the length of service under act of June 27, 1890. Citing Albert K. Ransom, 5 P. D., 183. Washington H. Rogers, alias George Jones (Asst. Sec. Bussey), 6 P. D., 170.

Soldier was granted bounty land in 1851 on the ground that he had "actually served one month," and was also allowed pension under the act of July 27, 1892, on the ground that he served thirty days in the Creek Indian war. The records show that he was enlisted and mustered in at Columbus, Ga., June 9, 1836, and mustered out with the company at the same place, July 7, 1836, and was allowed twelve days' travel pay, six from his home to the place of rendezvous and six from place of rendezvous to his home. His widow's claim was rejected on the ground of insufficient service: Held, (1) That under section 4701, Revised Statutes, the soldier's service for pensionable purposes did not necessarily end at date of muster out, but continued until the disbandment of the organization; (2) that the soldier's right to pension having been conceded and no question in regard thereto having been raised during his lifetime, the burden of proof is on the Government when it sets up the plea of insufficient service against the widow's claim; (3) that it has not been proved that soldier did not serve thirty days. Margaret M. Swann (Asst. Sec Reynolds), 8 P. D., 149.

(c) Records of the War Department accepted.

Rules adopted by the War Department as to length of service are clearly applicable in determining length of service in a bounty-land claim. John Wells (Sec. Harlan), 5 L. B. P., 395. See also BOUNTY LAND.

Section 4701, Revised Statutes, limits the legal termination of service in any pension case to one or other of two possible dates only; that is, (1) to date of actual discharge for any other cause than expiration of term of service of the organization, and (2) to the date of disbandment of organization because of the expiration of the term of service. A determination of the commencement of service by the War Department from its records, after full consideration of the law and the facts, in any claim based upon service during or since the war of the rebellion, will be accepted by this Department as final. Cases of Wilson v. United States, 25 C. Cls. R., 339; United States v. Johnson, 124 U. S., 253, and Same r. Moore, 95 U. S., 760, cited, The rule that pay is coincident with and determines the period of service vacated and set aside, and decisions affirmative

3. Length of service-Continued.

(c) Records of the War Department accepted—Continued.

thereof to that extent overruled. Cases of Ransom and Rogers, 5 P. D., 183, and 6 P. D., 170, respectively, considered in the connection. George W. Hill (Asst. Sec. Reynolds), 7 P. D., 235.

In computing the length of service to entitle soldier to pension, this Department accepts the records of the War Depart ment as conclusive. Cassie Thompson (Asst. Sec. Reynolds), 8 P. D., 67.

The provisions of section 2433, Revised Statutes, are not applicable to the pension law of June 27, 1890, in ascertaining the length of service named in sections 2 and 3 of the act where the records of the War Department show the term of service. Ibid.

(d) War of 1812.

Soldier served fifty-five days prior to and thirty-three days after treaty of peace: Held, That this did not constitute sixty days' service in the war of 1812. Elizabeth Chance (Sec. Schurz), 4 P. D. (o. s.), 381.

In order to entitle to pension for service in the war of 1812 it must be satisfactorily shown, not only that the soldier rendered service, but that he served for at least fourteen days; and where the statements of witnesses and claimant are conflicting and contradictory, and, when taken in connection with the record, confusing, so that the length of service is not ascertainable therefrom, claim must be rejected. Ezra D. Hetfield (Asst. Sec. Hawkins), 2 P. D., 155.

(e) War of the rebellion.

(1) Under act of July 14, 1862.

Continuous service until the end of the war should not be required in proving under claims for pension arising under section 10 of the act of July 14, 1862. Robert S. Goodall (Sec. Delano), 8 L. B. P., 443.

(2) Under act of June 27, 1890.

When soldier's service was compulsory, and in compliance with the sentence of a court-martial, and consisted of confinement at hard labor, with the loss of all pay and allowances due or to become due, he can not be held to have served in the military or naval service of the United States during the war of the rebellion within the meaning or intent of the act of June 27, 1890. George W. Fleck (Asst. Sec. Reynolds), 7 P. D., 343.